IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
DECEMBER 18, 2001
______________________________
SOTERO BENAVIDES, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 106TH DISTRICT COURT OF LYNN COUNTY;
NO. 95-2274; HONORABLE GEORGE HANSARD, JUDGE
_______________________________
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
Appellant Sotero Benavides filed a notice of appeal from the trial court's order revoking his community supervision and sentencing him to two years confinement in the Institutional Division of the Department of Criminal Justice. We previously abated this appeal to the trial court because we had not received a clerk's record or a reporter's record. The court reporter also notified this court that there had been no designation of the record, and appellant had not paid or made arrangements to pay for the record. Further, the attorney who represented appellant at trial executed an affidavit stating that, although he filed the notice of appeal, he had neither been hired by appellant to represent him nor been appointed by the court to represent him.
As a result of that abatement, appellant has signed an affidavit, which has been included in a clerk's record, indicating that he does not wish to pursue his appeal. Although appellant has not complied with the technical requirements of Rule 42.2(a) of the Rules of Appellate Procedure which call for the filing of a written withdrawal with this court, we believe appellant has substantially complied with the requirements or, in the alternative, we have the authority, pursuant to Rule 2 of the Rules of Appellate Procedure, to suspend the operation of Rule 42.2(a) for this appeal only, and find that appellant has voluntarily dismissed his appeal by virtue of his affidavit.
Therefore, because the record shows appellant no longer desires to pursue his appeal, it is hereby dismissed.
John T. Boyd
Chief Justice
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NO. 07-10-00032-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MAY 5, 2010
ARSENIO PETTY, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 16TH DISTRICT COURT OF DENTON COUNTY;
NO. F-2009-0413-A; HONORABLE CARMEN RIVERA-WORLEY, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ON MOTION TO ABATE AND REMAND
Pending before the court is Arsenio Pettys motion to abate and remand the appeal so that the trial court can enter findings pursuant to article 38.22 of the Texas Code of Criminal Procedure. We grant the motion.
When a trial court fails to make findings of fact and conclusions of law in compliance with article 38.22, section 6, of the Texas Code of Criminal Procedure, we must abate the appeal and remand the cause to permit it to comply with the statute. See Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (Vernon 2005). Because, in the present case, the trial court overruled appellant's complaints about the voluntariness of his statement, the requirements of article 38.22, section 6, of the Texas Code of Criminal Procedure were triggered here. Id. Thus, abatement and remand is necessary. Urias v. State, 155 S.W.3d 141, 142 (Tex.Crim.App. 2005) (noting the mandatory nature of art. 38.22, § 6, and requiring a trial court to file findings of fact and conclusions of law regardless of whether the defendant requested them or objected to their absence); Wicker v. State, 740 S.W.2d 779, 783 (Tex.Crim.App. 1987) (holding the same).
Accordingly, this appeal is abated and the cause is remanded to the trial court. The trial court is directed to take all steps reasonably necessary to comply with article 38.22, section 6, of the Texas Code of Criminal Procedure, which steps include the creation of pertinent findings of fact and conclusions of law addressing the voluntariness of appellant's statements and its decision to reject the challenge posed by appellant. The trial court is further ordered to undertake all steps reasonably necessary to ensure that complete reporter's and clerk's records of this cause are developed and filed with this Court. These records are to include the aforementioned findings of fact and conclusions of law. Furthermore, each of the actions we direct the trial court to undertake must be performed by June 4, 2010, unless that deadline is extended by this Court. Further, the trial court is directed to ensure that both the complete clerk's and reporter's records in this cause are filed with this Court by the same date.
The cause is abated and remanded to the trial court for further proceedings in accordance with this order.
Per Curiam
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